NEW YORK, March 26, 2002 — Call it “flying while Arab,” the newest shorthand in the debate over the use of ethnicity by law enforcement agencies trying to prevent crimes. Like its antecedent, “driving while black,” this new phrase is uttered tongue in cheek by civil libertarians trying to hold the line against all-out racial profiling following the Sept. 11 suicide hijackings. But the debate these days is not so much whether to profile, but rather how to integrate ethnicity and possibly religious affiliation into screening regimens without violating constitutional rights.

A jittery traveling public seems much more accepting not only of long delays and extra security, but also of added scrutiny of passengers who might be of Middle Eastern origin or descent. In the eyes of civil libertarians, it has given government agencies a much freer hand to single out anyone they wish to.

By one definition, the word “profiling” is “a set of data that indicates the extent to which something matches tested or standard characteristics.”

In March 2001, Attorney General John Ashcroft described the practice of racial profiling as “tragic” and announced his support for legislation to prevent it.

Yet in the six months after the worst act of terrorism on American soil, the issue has become more complex. In the minds of many people, greater scrutiny of people of Middle Eastern descent is not morally indefensible anymore.

Given that, in the past, proactive policing has been known to foil potential criminals before they commit crimes, Ashcroft invoked the example of one of his most famous predecessors.

He told a group of federal prosecutors in November that the Justice Department of Robert F. Kennedy “would arrest a mobster for spitting on a sidewalk if it would help in the fight against organized crime. In the war against terror, it is our policy to be equally aggressive in protecting American citizens.”

Updates and overhauls
In terms of airport security, the profiling system had already undergone a major shift before the Sept. 11 attacks. The Federal Aviation Administration overhauled its screening guidelines in 1997 in response to recommendations made by a security commission created after the explosion of TWA Flight 800 over New York. The commission recommended that airlines switch to a profiling system known as Computer Assisted Passenger Pre-Screening System, or CAPPS.

Can you spot the threats?CAPPS uses a computer program that compiles information about passengers culled from airlines’ reservation systems. It identifies passengers who should be subjected to extra scrutiny by evaluating 40 pieces of data that are collected from passengers. This information is then used to determine whether a passenger is designated a “selectee” or a “non-selectee” for added screening.

“The Justice Department examined CAPPS and found that there was indeed no discrimination in it,” said Bill Mosley, a department spokesman. The criteria used in the process are kept secret for “security reasons.” To ensure that there is no discrimination involved in screening, CAPPS also randomly selects a group of passengers for extra screening.

Civil libertarians are skeptical because of the secrecy surrounding the system. “Historically, profiling has been employed as a cost-saving measure when security resources were scarce,” Katie Corrigan, a legislative counsel for the American Civil Liberties Union, told the House Transportation subcommittee on aviation on Feb. 27.

“Now that the federal government is in charge of screening, cost shouldn’t be an issue,” added her colleague Rachel King, another ACLU legislative counsel. “Immediately after the 9/11 attacks, it might have made sense to look for more hijackers. But now there is nothing to suggest that the next terrorist attack is going to be a hijacking.”

Many difficulties
Many questions about screening and race have been raised since Sept. 11. One is whether factoring in a person’s race really can be avoided, and another is how to maintain an effective screening process without sacrificing the civil liberties of part of the population.

Peter Schuck, a professor at Yale Law School, said “profiling is not conclusive, but it is valuable.”

Schuck argues that it is imperative to distinguish between profiling and crude stereotyping. Profiling, he said, can be an effective law enforcement tool, “as long as there is a genuine belief that they [the criteria used in CAPPS] are correlated with the risks that you’re looking for and not motivated by the bias.”

The way to ensure that profiling remains effective is to constantly monitor its validity in light of new information, Schuck said.

The ACLU takes an opposing stand. Corrigan, in her congressional testimony in February, called profiling an ineffective security measure, arguing it “will always remain one step behind terrorists” because any experienced terrorist group could thwart a profiling system by simply getting someone who doesn’t “fit the profile” to do the job.

More than skin deep
In the minds of security experts, screening out terrorists has to involve more than simply looking at a person’s name and skin color and deciding to pull them aside for extra scrutiny. It also means more than just making all passengers pull out their nail files or stopping random passengers for the sake of political correctness.

Coming to AmericaRafi Ron, the security consultant at Boston’s Logan Airport and former head of security at Tel Aviv’s Ben Gurion airport, advocates what he calls “behavioral passenger pattern recognition.”

“It does not relate to a person’s racial background or ethnic background so much [as] to the other aspects of who he is,” Ron said.

“As long as we don’t deal with that side of it, we don’t look at the passengers and see who they are before we let them on board. We are due to have the Richard Reids of this world on our airplanes, and what then?” he added, referring to the man accused of trying to blow up a plane bound from Miami to Paris with a bomb concealed in his shoe.

“Profiling as a science is notoriously ineffective,” said King of the ACLU. “Extra scrutiny should flow from some sort of increased suspicion, setting off the magnetometer, behavioral patterns or intelligence information. Racial profiling, in addition to being ineffective, gives tacit permission to treat people badly. It doesn’t speak well of us as a country.”